TOPEKA — An attorney for death row inmate Kyle Flack on Monday pointed to unidentified DNA, cellphone evidence, an unlawful police interrogation and rushed trial as reasons to overturn the capital murder conviction.
A Franklin County jury in 2016 convicted Flack in the 2013 killing spree of three adults and a toddler, whose body was found in a suitcase floating in a creek. Flack shared a residence with the victims and owned the shotgun that was used to kill them.
Flack was captured in Emporia, where video showed him disposing of victims’ belongings in a dumpster.
In arguments before the Kansas Supreme Court, Flack’s appellate attorney, Clayton Perkins, said cellphone data showed someone else moved Andrew Stout’s body at the same time Flack was seen on video in Emporia. Other cellphone data showed Stout and Kaylie Bailey exchanged more than 50 text messages when prosecutors claimed they were both already dead.
Perkins said DNA evidence of an unidentified man was found in pubic hair, under fingernails and on the handkerchief used to gag Bailey.
Flack repeatedly asked police to take him to jail during a prolonged interrogation. Perkins said a “reasonable officer” would have understood Flack was exercising his right to end the interrogation.
At one point, Perkins said, Flack pointed to a detective’s handcuffs and told him to “put these motherf***ers on me.”
“Who the f*** do we talk to, Kyle,” the detective asked.
“I don’t f***ing know,” Flack answered. “You know what? Wrap these up, take me to f***ing jail, because obviously you’re just going to keep going. So I can’t give you information I don’t f***ing have, so do what you do.”
Kristafer Ailslieger, deputy solicitor general for the Kansas Attorney General’s Office, said Flack never explicitly told police to stop. Flack’s comments could be interpreted as mere hyperbole, or outbursts of anger, Ailslieger said.
“He has a right to say, ‘I want to quit the interview,’” Ailslieger said. “But the problem here is he never said that. He made these references — ‘Well, take me to jail,’ ‘If this is the way we’re going to be, take me to jail,’ ‘Yes, do what you’re going to do,’ stuff like that — that did not really fully indicate that he wanted to stop.”
Flack eventually told police he was at the house when the killings occurred.
“Without that confession,” Perkins said, “the state is left with a case built upon circumstances and weak inferences, where the state cannot place Mr. Flack in that room.”
Perkins said the trial judge allowed a miscarriage of justice when he refused to provide the appointed defense attorney more time to prepare for trial. The attorney already had been assigned 30-50 other active cases and had no prior experience with a homicide case. He wasn’t finished reviewing evidence, had no time to complete his own investigation and didn’t prepare a strategy for the penalty phase.
Before jurors considered the death penalty, Perkins said, they should have known Flack’s childhood was permeated with physical and sexual abuse, that he lived in poverty, that he was conceived from a sexual assault on his mother and never knew his father, and that he suffers from mental illness.
Other issues raised during the appeal include comments by the prosecutor, who mentioned Mother’s Day during closing arguments in an appeal to the sympathies of the jury, and whether the constitutional prohibition on cruel and unusual punishment applies to capital punishment for someone who is bipolar and schizophrenic.
